Central Administrative Tribunal - Delhi
Tushar Ranjan Mohanty vs M/O Statistics on 28 January, 2016
1 OA No.940/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No.940/2015
Reserved on: 07.12.2015
Pronounced on:28.01.2016
HON'BLE MR. JUSTICE B.P. KATAKEY, MEMBER (J)
HON'BLE MR. V.N. GAUR, MEMBER (A)
Tushar Ranjan Mohanty,
Aged 56 years,
S/o Shri Rabi Narayan Mohanty,
SAG Officer of the Indian Statistical Service,
Deputy Director General,
Rajasthan (West) Regional Office,
Field Operations Division,
National Sample Survey Office,
Ministry of Statistics and Programme
Implementation,
NSSO Bhawan, Hari Bhau Upadhyay Nagar,
Ajmer-305004.
Currently residing at :
G-31, HUDCO Place Extension,
New Delhi-110049. ...Applicant
(Applicant in person)
VERSUS
1. Union of India through
The Chief Statistician of India and
Secretary, Ministry of Statistics and
Programme Implementation,
Sardar Patel Bhawan,
Parliament Street,
New Delhi-110001.
2. Prof. T.C.A. Anant,
The Chief Statistician of India and
Secretary, Ministry of Statistics and
Programme Implementation,
Sardar Patel Bhawan,
Parliament Street,
New Delhi-110001.
2 OA No.940/2015
3. Shri Ajay Kumar Mehra,
Director General and
Chief Executive Officer,
National Sample Survey Office,
Ministry of Statistics and
Programme Implementation,
Sardar Patel Bhawan,
Parliament Street,
New Delhi-110001.
4. Shri D.K. Sharma,
Under Secretary (ISS and Vigilance),
Ministry of Statistics and
Programme Implementation,
Sardar Patel Bhawan, Parliament Street,
New Delhi-110001. ...Respondents
(By advocate: Mr. R.N. Singh)
ORDER
BY JUSTICE B.P. KATAKEY, MEMBER (J) This OA has been filed by the applicant challenging the charge memorandum dated 18.02.2015 issued by order and in the name of President by the Under Secretary to the Government of India, Ministry of Statistics & Programme Implementation, under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 (in short 1965 Rules), on the following article of charges:-
"ARTICLE I Shri Tushar Ranjan Mohanty, Indian Statistical Service (ISS) Officer while posted as Deputy Director General (RPU), CAP Division, R.K. Puram in the year 2012 had obtained a Motor Car Advance from Government of India for Rs.1,50,000/- besides taking final withdrawal of Rs.1,10,000/- from his GPF 3 OA No.940/2015 Account for the purchase of of a Motor Car but deliberately failed to comply with the terms and conditions of the Order No.G-26023/1/2011-Ad.II dated 26.03.2012 vide which the motor car advance was sanctioned to him within the stipulated period and as required under Rule 29 of GFRs, Shri T.R. Mohanty also failed to give precise and complete information to the concerned authority in the Ministry about the said transaction as required of him under Rule 18(3) of the CCS (Conduct) Rules, 1964 inspite of directions issued to him in this regard vide OM No.A-19014/15/2004-Ad.I dated 28.05.2012 and reminders No.A- 19014/15/2004-Ad.I dated 20.9.2012 and dated 19.10.2012.
Thus Shri T.R. Mohanty, DDG by his aforesaid conduct acted in a manner unbecoming of a government servant and thus violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
ARTICLE II Shri T. R. Mohanty, Indian Statistical Service (ISS) Officer while posted as Deputy Director General (RPU), CAP Division, R.K. Puram in the year 2012 had obtained a Motor Car Advance of Rs.1,50,000/- for the purchase of a Motor Car but deliberately failed to comply with the terms and conditions of the Order No.G-26023/1/2011-Ad.II dated 26.03.2012 vide which the motor car advance was sanctioned to him and as required under Rule 29 of GFRs 2005 and got the Motor Car bearing Registration Number DL 8CX 5128 hypothecated in the name of ICICI Bank Limited.
Thus Shri T.R. Mohanty, DDG by his aforesaid conduct acted in a manner unbecoming of a government servant and thus violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.4 OA No.940/2015
ARTICLE III Shri T. R. Mohanty, Indian Statistical Service (ISS) Officer while posted as Deputy Director General (RPU), CAP Division, R.K. Puram in the year 2012 had obtained a Motor Car Advance of Rs.1,50,000/- besides taking final withdrawal of Rs.1,10,000/- from his GPF Account for the purchase of of a Motor Car. As per intimation given by him to the competent authority vide his Note dated 13.03.2012 the cost of Car is Rs.10,06,112/-. In his subsequent Note 09.05.2012 he stated that he availed Car loan of Rs.1.50 lakhs, a withdrawal of Rs.1.1. lakhs from his GPF Account and the balance amount was paid by a Car Loan from ICICI Bank. Since the price of the Car purchased by him as intimated by him was Rs.10,06,112/- the balance amount that was paid by him through a loan from ICICI Bank works out to Rs.6,96,112/- [Rs.10,06,112 -
(Rs.1,50,000/- towards Motor Car Advance + Rs.1,10,000/- towards Withdrawal from GPF+Rs.50,000/- paid as advance vide his note dated 17.04.2012)]. Whereas on inquiry from ICICI Bank it is found that as against his intimation of taking balance loan amounting to Rs.6.96,112/- (vide his Note dated 09.05.2012), he availed total loan amount of Rs.8,34,000/-. Thus Shri T.R. Mohanty, DDG has made a false statement to this Ministry about the quantum of loan taken from ICICI Bank Limited and by drawing excess of Loan from ICICI Bank Limited, did not fully utilize the amount withdrawn from GPF and the amount of Motor Car Advance and at the same time did not return the unutilized amount to the Government as 5 OA No.940/2015 required under the Rules and as per terms of the Order No.G-26023/1/2011- Ad.II dated 26.03.2012.
Thus Shri T.R. Mohanty, DDG by his aforesaid conduct acted in a manner unbecoming of a government servant and thus violated Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964.
ARTICLE IV Shri T. R. Mohanty, Indian Statistical Service (ISS) Officer while posted as Deputy Director General (RPU), CAP Division, R.K. Puram in the year 2012 had applied for a Motor Car Advance of Rs.1,50,000/- for the purchase of a Motor Car. In response to his application, Shri T.R. Mohanty was sanctioned Motor Car Advance amounting to Rs.1,50,000/- for the purchase of a car vide Order No.G- 26023/1/2011-Ad.II dated 26.03.2012, inter-alia, subject to the condition that he would furnish a Mortgage Bond in Form- IV of GFR-2005 on completion of purchase hypothecating the Conveyance to the President of India as security for advance. Instead of furnishing a Mortgage Bond in Form-IV of GFRs 2005 in compliance with the terms and conditions of the Order No.G- 26023/1/2011-Ad.II dated 26.03.2012 and the provisions of Rule 29 of GFRs 2005, Shri T.R. Mohanty gave an undertaking about the Asset (Car) under the first and exclusive charge of ICICI Bank Limited and by executing an 'Irrevocable Power of Attorney' in favour of ICICI Bank Limited while obtaining a loan of Rs.8,34,000/- from that Bank. Thus Shri T.R. Mohanty had obtained Motor Car Advance of Rs.1,50,000/- from the Government knowingly that by giving an undertaking about the Asset (Car) under the first and exclusive charge of ICICI Bank Limited he would not be able to furnish a Mortgage Bond in Form-IV of 6 OA No.940/2015 GFR-2005 on completion of purchase of the Car hypothecating the Conveyance to the President of India as security for advance and thus defrauded the exchequer."
2. The applicant has challenged the said charge memorandum dated 18.02.2015, on the following grounds mentioned in Para 4.39 of the OA:-
(a) No Show Cause Notice was issued before issuance of the Charge Sheet;
(b) The Charge Sheet is accentuated by Undue delay;
(c) The Charge Sheet is a fraud, as the Applicant has already been issued an Order of Recovery;
(d) The Ministry does not have its facts right, and the allegations in the Charge Sheet are false, motivated and manufactured, besides being contrary to law;
(e) There is total non-application of mind by the Competent Authority;
(f) There is no misconduct made out from the face of the records;
(g) The Charge Sheet is accentuated by malice; and
(h) There is total violation of the principles of natural justice by the Respondent Ministry while dealing with the present case.
3. The applicant on receipt of the aforesaid charge memorandum submitted his reply on 09.03.2015 addressed to the Additional Secretary of the Ministry of Statistics and Programme Implementation denying the charges levelled against him and requesting him to permit him to appear in person before the Disciplinary Authority to explain the entire issue and in the 7 OA No.940/2015 event the said authority still decides to go ahead with the disciplinary proceedings, then to conduct the enquiry by independent authority immediately and to conclude the same within the period of three months as the delay would cause prejudice to him, as consideration of his promotion to the post of Additional Director General was due.
4. The respondents filed their counter affidavit resisting the claim of the applicant in the OA containing inter alia that article of charges levelled against the applicant, on the face of it, reveal commission of misconduct by him, which required recording of finding of fact by the Inquiry Officer. The allegations made by the applicant in the OA has been denied by the respondents in their counter filed. According to the respondents, no attempt has been made by the respondents to cause any delay in completion of the disciplinary proceedings initiated against the applicant, which would be concluded within a reasonable period of time.
5. We have heard Shri T.R. Mohanty, the applicant in person and Shri R.N. Singh, the learned counsel appearing for the respondents.
6. Elaborating the argument, on ground (a) of challenge to the charge memorandum dated 18.02.2015, it has been submitted by the applicant in person that issuance of show cause notice before issuance of charge memorandum is a condition precedent so as to 8 OA No.940/2015 comply with the requirement of natural justice, which is the hallmark of justice and in the instant case, since the charge memorandum dated 18.02.2015 has been issued without issuing any show cause notice thereby denying an opportunity to explain the position by the applicant, the charge memorandum cannot be sustained in law, on the ground of the violation of the principles of natural justice. Placing reliance on the judgments passed by the Apex Court in State of Orissa Versus Dr. (Miss) Binapani Dei reported in AIR 1967 SC 1269; M. Gopala Krishna Naidu Versus State of Madhya Pradesh reported in AIR 1968 SC 240; A.K. Kraipak & Ors. etc. Versus Union of India & Ors., reported in AIR 1970 SC 150; D.K. Yadav Versus J.M.A. Industries Ltd., 1993 SCC (3) 259 and Swadeshi Cotton Mills Versus Union of India, (1981) 1 SCC 664, it has been submitted by the applicant in person that the Disciplinary Authority cannot initiate a disciplinary proceeding against him by issuing the charge memorandum without first issuing the show cause notice as to why the charge memorandum should not be issued under the relevant provisions of Discipline and Appeal Rules, thereby giving an opportunity to explain his case before issuance of such charge memorandum.
7. Advancing the argument on the ground (b) of challenge i.e. that the charge sheet being accentuated by undue delay, such charge memorandum is liable to be quashed, it has been 9 OA No.940/2015 submitted that no charge memorandum can be issued, thereby initiating a disciplinary proceeding, after lapse of considerable time as it would be unfair to the delinquent officer to ask him to explain his position in relation to the allegation levelled by the charge memorandum. In the instant case, according to the applicant, by the major penalty charge memorandum dated 18.02.2015, the respondents have brought up the allegation pertaining to the year 2012 and if the charge memorandum is not quashed, it would cause prejudice to the applicant, in as much as it is not possible on the part of the applicant as well as the persons to be examined in his favour to remember what actually has happened way back in the year 2012. It has also been contended that the long delay of 03 (three) years in issuing the charge memorandum and thereby initiating the disciplinary proceeding has not been explained. It is, therefore, submitted that the action on the part of the respondent-authority issuing the charge memorandum is hit by the doctrine of laches and undue delay and hence is liable to be set aside.
8. The applicant in person in support of his contention has placed reliance on the judgments of the Apex Court in State of Punjab Versus Chaman Lal Goyal reported in (1995) 2 SCC 570; State of Andhra Pradesh Versus N. Radhakishan reported in AIR 1998 SC 1833; P.V Mahadevan Versus M.D. Tamil Nadu Housing Board reported in AIR 2006 SC 207; M.V. 10 OA No.940/2015 Bijlani Versus Union of India reported in AIR 2006 SC 3475; P.D. Agrawal Versus State Bank of India & Ors., reported in AIR 2006 SC 2064; Government of A.P. and Others Vs. V. Appala Swamy, reported in 2007 (2) SCR 19; Secretary, Forest Department & Ors. Versus Abdur Rasul Chowdhury, reported in (2009) 7 SCC 305; State of Punjab Versus Baldev Singh, reported in (1999) 6 SCC 172 as well as Bharat Petroleum Corporation Ltd. Versus N.R. Vairamani, reported in AIR 2004 SC 4778.
9. Referring to the stand taken by the respondents in the counter reply filed, it has been submitted by the applicant in person that though the respondents have taken the stand that they issued certain communications to the applicant, the same have never been received by him. That apart, according to the applicant, though the Central Vigilance Commission vide his communication dated 23.05.2000 has provided the timelines for completion of disciplinary proceeding including the submission of inquiry report within 06 (six) months from the date of appointment of the Inquiry Officer and Presenting Officer, the proceeding initiated against the applicant having not been completed within the said timelines, the entire disciplinary proceeding initiated vide the impugned charge memorandum needs to be interfered with. In the instant case, it has been submitted by the applicant in person that though the Inquiry 11 OA No.940/2015 Officer and the Presenting Officer were appointed way back on 19.03.2015, the enquiry proceeding has not been completed within the time specified by the Central Vigilance Commission in the aforesaid communication. In support of his contention relating to the requirement of the completion of the proceeding within 06 (six) months, the applicant in person has also placed reliance on Office Memorandum dated 29.11.2012 issued by the Department of Personnel & Training. It has further been submitted that despite making the request for early completion of enquiry, the same has none been done so far, which causes prejudice to the interests of the applicant as delay in completion of the enquiry would deprive the applicant from getting his promotion to the post of Additional Director General. The applicant in person, therefore, submits that the disciplinary proceeding initiated against him by issuing the aforesaid charge memorandum is to be set aside on the ground of inordinate delay in completion of the same, without any reasonable justification.
10. Advancing the argument in relation to ground (c) of challenge to the charge memorandum , it has been submitted by the applicant in person that it is evident that vide order dated 12.12.2014 recovery of the loan amount has already been directed on the ground that the applicant neither furnished the required details relating to the acquisition of the movable property nor adhered to the conditions of the car advance as 12 OA No.940/2015 stipulated in Sanction Order dated 26.03.2012 and hence, according to the applicant, the Disciplinary Authority could not have issued the charge memorandum under Rule 14 of 1965 Rules, more so, when the penalty has been prescribed in the Sanction Order dated 26.03.2012 itself in case of non-fulfillment of the conditions of the sanction of the loan, i.e., the applicant would not be entitled to the rebate to the extent of 2.5%, which otherwise he would have been entitled to.
11. Referring to the Rule 11 of the 1965 Rules, which lists the penalties that can be imposed on a Government Servant, more particularly the penalty for recovery from his pay of the whole or any part of the pecuniary loss caused by him to the Government by negligence or breach of any orders, it has also been submitted that since the recovery order has already been passed for alleged violation of the conditions of Sanctioned Order dated 26.03.2012, the penalty prescribed under Rule 11 (iii) of the 1965 Rules has been inflicted, and hence he cannot be penalized again for the same cause as done by the respondents by issuing the charge memorandum dated 18.02.2015. According to the applicant, action on the part of the respondent-authority amounts to double jeopardy. It has also been contended that the applicant has already been penalized by issuing the order of recovery and, therefore, the issuance of the subsequent charge memorandum for imposing the major penalty on 18.02.2015 amounts to fraud. 13 OA No.940/2015 The applicant has submitted that the major penalty charge sheet dated 18.02.2015 is, therefore, bad in law, the same being contrary to the principles of law laid down by the Hon'ble Supreme Court in the judgment mentioned in Paragraph 5.34 of the OA. It may be mentioned here that the applicant, though in the said paragraph, has listed a number of judicial pronouncements of the Hon'ble Supreme Court, those, however, have not been referred to or relied upon during the course of the argument, except making mention of the same in the aforesaid paragraph as well as in paragraph 23 of the written argument filed by him on 09.12.2015.
12. In support of the ground (d), taken by the applicant in challenging the charge memorandum dated 18.02.2015, it has been submitted that the allegations levelled against him by the Disciplinary Authority in the said charge memorandum are all false, motivated and manufactured, besides being contrary to law. Referring to the averment made in the paragraph 4.63 to 4.65 of the OA, it has been submitted that though the documents asked for were duly sent by the applicant through his PA in 2012 itself, it would, however, now not be possible for the applicant to locate the person to whom these papers were handed over by his PA, which, however, has to be presumed to be delivered, the Respondent-Ministry being quite for 03 (three) years. Referring to the Sanction Order dated 26.03.2012, it has also been 14 OA No.940/2015 submitted that there being a condition that the agreement in Form II of GFR-2005 is to be executed at the time of the withdrawal of the advance, the factum of execution of the agreement in Form II has been admitted by the respondent- authority, since the advance amount sanctioned by the said Sanction Order has been released and allowed to be withdrawn by the applicant. According to the applicant, since he has explained each and every article of charges levelled against him in the OA filed, there cannot be any further proceeding pursuant to the charge memorandum dated 18.02.2015, more so when a plain reading of the allegation levelled against him do not constitute "misconduct" as understood in normal parlance. The applicant further submitted that there has to be some evidence connecting the misconduct alleged to the Charged Officer, which being absent in the case in hand, no disciplinary proceeding could be allowed to continue based on the said charge memorandum, more so when or surmise cannot take place of proof.
13. The applicant in person in support of the ground (e) taken by him in challenging the charge memorandum, submits that the action on the part of the respondent-authority in issuing the charge memorandum suffers from the total non-application of mind, in as much as the Sanction Order dated 26.03.2012 itself having penal provisions, non-completion of the conditions of the Sanction Order would not invite any disciplinary proceeding under 15 OA No.940/2015 the provisions of 1965 Act, as the same would not constitute "misconduct" so as to take disciplinary action against the applicant. Referring to the decision of this Tribunal in Ms. Sudha Midha Versus Union of India (OA No.2846/2015 decided on 10.09.2015), it has been submitted that since the action on the part of the respondent-authority in issuing the charge memorandum suffers from the vices of non-application of mind, the charge memorandum needs to be set aside and quashed. The applicant in person in support of his contention has also placed reliance on the judgments passed by the Hon'ble Apex Court in Jagannath Versus State of Orissa, reported in AIR 1966 SC 1140; Abdul Rajjak Abdul Wahab Versus Commissioner of Police, reported in (1989) 2 SC 222; Jai Singh Versus State of Jammu & Kashmir, reported in (1985) 1 SCC 561 and Ghaziabad Zila Sahkari Bank Ltd. Versus Additional Labour Commissioner and Others, reported in (2007) 11 SCC 756.
14. Referring to the allegation levelled against the applicant in the charge memorandum dated 18.02.2015 and in support of the ground (f) of the challenge to the aforesaid charge memorandum, the applicant in person has submitted that a delinquent can be punished by the Disciplinary Authority by initiating the disciplinary proceeding only when "misconduct" is made out. According to the applicant, a plain reading of the allegation 16 OA No.940/2015 levelled against him does not constitute any "misconduct" so as to punish him by initiating any disciplinary proceeding. The applicant in person submits that since the "misconduct" has not been defined in the relevant rules, which must mean wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanor etc. and which is absent in the case in hand, it cannot constitute any "misconduct" so as to initiate disciplinary proceeding against the applicant. The applicant has also submitted that to constitute "misconduct", it must be any unlawful behaviour by the public servant in relation to the duties of his office and it must be willful in character. It also must be a violation of the defined law, apart from improper or wrongful behaviour, unlawful behaviour and a transgression of some established and definite rule of action. It has also been submitted that a single act or omission or error of judgment would not constitute "misconduct", unless it results in atrocious consequences. Referring to Rule (3) of Central Civil Services (Conduct) Rules, 1964, it has also been submitted that unless a Government Officer violates any of the provisions contained in sub-rule (1) of Rule 3, he cannot be penalized in the disciplinary proceeding and in the instant case the allegations levelled against the applicant vide charge memorandum dated 18.02.2015 having not constituted of any of stipulation in sub-rule (1) of Rule 3 of the said rule, the disciplinary proceeding initiated against him needs to be interfered with. It is evident on the face of the 17 OA No.940/2015 allegation levelled against him that such allegations are based on the presumption and surmises and are without any basis what so ever and hence the charge memorandum issued needs to be interfered with as the Government Officer should not be allowed to suffer, submits the applicant in person.
15. The applicant in person, in support of his contention, has placed reliance on the decisions of the Hon'ble Apex Court in Union of India Versus J. Ahmed, reported in AIR 1979 SC 1022; A.L. Kalra Versus P & E Corpn. Ltd., reported in AIR 1984 SC 7357; State of Punjab Versus Ram Singh, reported in 1992 AIR SCW 2595; Union of India Versus K.K. Dhawan, reported in AIR 1993 SC 1478; B.C. Chaturvedi Versus Union of India, reported in (1995) 6 SCC 749; Baldev Singh Gandhi Vs. State of Punjab, reported in AIR 2002 SC 1124; M.M. Malhotra Vs. Union of India, reported in 2005 AIR SCW 5497; Ravi Yashwant Bhoir Versus District Collector, Raigad, reported in (2012) 4 SCC 407; Inspector Prem Chand Versus Govt. of N.C.T. of Delhi, reported in (2007) 4 SCC 566; and P.H. Kalyani Versus Air France, reported in AIR 1963 SC 1756.
16. Advancing argument on ground (g), it has been submitted by the applicant in person that the charge memorandum dated 18.02.2015 is accentuated by malice. According to the applicant, the impugned charge memorandum is the outcome of four contempt proceedings filed by the applicant against the authority. 18 OA No.940/2015 That apart, as has been held by this Tribunal in OA No.2262/2009 (T.R. Mohanty Versus Union of India decided on 13.01.2010), there is an institutional bias prevailing against the applicant, which resulted in issuance of charge memorandum, so that the applicant is deprived from getting the promotion to the next promotional post. The applicant in person, in support of his contention, has placed reliance on the order of this Tribunal dated 11.07.2014 passed in CP No.253/2014 as well as the order dated 09.10.2015 passed by this Tribunal in OA No.4721/2014 (T.R. Mohanty Versus Union of India & Ors.).
17. In support of ground (h) of challenge to the charge memorandum dated 18.02.2015, it has submitted by the applicant in person that the disciplinary proceeding initiated against him by issuing the charge memorandum needs to be quashed for violation of the principles of natural justice before and after issuance of impugned charge memorandum. According to the applicant, the respondent-authority before issuance of charge memorandum did not take into consideration all the relevant facts and has issued the same only with the mala fide intention of delaying the promotion of the applicant to the next higher post. It has also been submitted that the violation of the principles of natural justice writ large as the opportunity of personal hearing asked for by the applicant, pursuant to the stipulation in Paragraph 02 (two) of the impugned charge 19 OA No.940/2015 memorandum dated 18.02.2015, before appointing the Inquiry Officer and Presenting Officer, has been denied. It is a settled position of law that the disciplinary proceeding, which is a quasi- judicial proceedings, if conducted in violation of the principles of natural justice, the same cannot be sustained in law and hence according to the applicant, the entire proceeding initiated against him needs to be interfered with.
18. The applicant, in the written submission filed on 09.12.2015, contended that the charge memorandum may not have any formal approval by the Competent Authority. Such submission along with the ground number (l) taken in the written submission, having not been raised and argued during the course of hearing of the OA, cannot be taken into consideration, as in that event it will amount to depriving the respondents to controvert the same.
19. Per contra, Mr. R.N. Singh, learned counsel appearing for the respondents, referring to the averments made in the counter reply filed as well as the averments made by the applicant in the OA, has submitted that the applicant could not make out any case to interfere with the charge memorandum dated 18.02.2015, when it cannot be said that the plain reading of the allegation levelled against the applicant does not constitute any misconduct so as to initiate the disciplinary proceeding. It is submitted that the scope of inference with the charge memorandum issued to a delinquent officer by the Court or the Tribunal is very limited and 20 OA No.940/2015 it can be interfered with only if no misconduct on the face of the allegation leveled, is made out or the charge memorandum has been issued by the authority, who is not competent to do so or the same has been issued with a malafide intention. In the instant case, according to the learned counsel, there is no allegation of malafide exercise of powers by the Disciplinary Authority in issuing the charge memorandum. According to the learned counsel, even if such allegation regarding the malafide exercise of powers is levelled, mere allegation is not enough. The learned counsel further submits that certain allegation, however, has been levelled against the Under Secretary, who is not the Disciplinary Authority and by no stretch of imagination, it can be presumed that the Disciplinary Authority was influenced by the Under Secretary for issuing the charge memorandum against the applicant.
20. Mr. Singh, in reply to the grounds taken by the applicant in challenging the charge memorandum, has submitted that there is no requirement of issuance of a show cause notice to the Delinquent Officer before issuance of charge memorandum, as has been contended by the applicant. The learned counsel submits that the principles of natural justice cannot be stretched to such a limit of issuance of show cause notice before issuance of charge memorandum. It has also been submitted that neither the 1965 Rules nor any OM issued to the Government of India 21 OA No.940/2015 requires issuance of such notice and hence the contention of the applicant in that regard cannot be accepted. Mr. Singh further submits that though the principles of natural justice is the hallmark of judicial system, it cannot be said that the charge memorandum issued under the provisions of 1965 Rules cannot be sustained in law in the absence of any preliminary enquiry or issuing any show cause notice before issuance of such charge memorandum. It has also been submitted that the decisions of the Hon'ble Apex Court referred to by the applicant in person in support of the contention, do not lay down the law that unless a prior show cause notice is issued allowing the delinquent officer to explain his position, no charge memorandum can be issued under the provisions of the relevant Discipline and Appeal Rules.
21. Mr. Singh further submits that in the instant case, the applicant was time and again asked to file the complete details, despite which he did not submit such information. It has also been submitted that the applicant vide communication dated 17.04.2012 was directed to furnish the complete details of the transaction relating to purchase of car in prescribed form along with photocopies of the papers of the car and also exact break up of source of payment made in that regard, followed by the two reminders dated 28.05.2012 and 20.09.2012. It has also been submitted that another communication dated 19.10.2012 was also issued by the Director (Admn.) to the applicant asking him to 22 OA No.940/2015 provide the details, despite which the applicant did not furnish any information. Referring to the communication dated 05.08.2013 issued by the Under Secretary, it has also been submitted that the applicant has been informed that the agreement in Form II of GFR-2005, was required to be executed at the time of drawal of advance and also a mortgage bond in Form-IV of GFR-2005, on completion of the purchase, hypothecating the vehicle to the President of India as security for advance. Apart from the Registration Certificate, the Insurance Certificate was also asked to be furnished to the Department, which has also not been complied with by the applicant. The learned counsel, therefore, submits that in the instant case the applicant cannot plead that he was not given opportunity to produce the documents and to comply with the requirement of the Sanction Order dated 26.03.2012.
22. Mr. Singh further submits that the principles of natural justice require giving reasonable opportunity of being heard to the applicant in the disciplinary proceeding initiated by issuing the charge memorandum and such reasonable opportunity, as required under the 1965 Rules, would definitely be granted to the applicant, which has also been mentioned in the charge memorandum dated 18.02.2015. According to the learned counsel, the contention of the applicant that he has a right of hearing by the Disciplinary Authority before proceeding further on 23 OA No.940/2015 the charge memorandum, as it has been mentioned in the said charge memorandum that he has a right to be heard, cannot be accepted in view of the requirements of giving such hearing during the disciplinary proceeding to be conducted pursuant to the impugned charge memorandum. Referring to the order dated 18.02.2015, it has also been submitted that the Disciplinary Authority, having considered the reply filed by the applicant, decided to enquire into the charges levelled against him and hence the Inquiry Officer as well as the Presenting Officer were appointed under the provisions of 1965 Rules, for conduct of enquiry, wherein full opportunity of being heard, as required under the law, would necessarily be given to the applicant.
23. Referring to the ground (b) taken by the applicant in challenging the charge memorandum, the learned counsel has reiterated the aforesaid submission advanced. It has been contended that no delay in the instant case has been caused in issuing the charge memorandum, which was issued on 18.02.2015 after waiting for some time to reply to the aforesaid communications issued by the Department. It has been submitted that having regard to the aforesaid communications issued by the Department directing the applicant to furnish the information as well as to furnish the documents mentioned therein, it cannot be said that there is any delay in issuing the 24 OA No.940/2015 charge memorandum and in no case it can be said that the delay, if any, is undue and unexplained.
24. The learned counsel also submits that the CVC Circular dated 23.05.2005, wherein the time limit for completion of the disciplinary proceeding has been stipulated, cannot come to the rescue of the applicant in challenging the charge memorandum, more so, when there is absolutely no delay in issuing the charge memorandum against the applicant. It has also been submitted that the decisions of the Hon'ble Apex Court, on which the applicant has placed reliance, having regard to the facts and circumstances of this case, have no application.
25. In reply to the submission advanced by the applicant relating to the ground (c) of challenge to the charge memorandum, Mr. Singh, learned counsel submits that issuance of the order of the recovery cannot come in the way of initiation of disciplinary proceeding against the applicant if there is any misconduct committed by the applicant. Referring to the loan Sanction Order dated 26.03.2012, it has been submitted that the disciplinary proceeding can be initiated against the applicant in the event of non-compliance of the conditions of the said sanction order, more particularly non-execution of the agreement in Form II as well as the mortgage in Form IV of GFR-2005, on completion of purchase, hypothecating the vehicle to the President of India as security for advance, as such conduct of the applicant amounts 25 OA No.940/2015 to misconduct. The learned counsel also submits that simply because it has been stipulated in the said sanction order that the applicant would not be entitled to rebate to the extent of 2.5% if the conditions attached to the sanction, including those related to the recovery of the amount, are not fulfilled, it would not debar the Disciplinary Authority from initiating the disciplinary proceeding by issuing the charge memorandum in the event of failure to secure the loan advanced to the applicant out of the public money, by executing the agreement as well as the mortgage bond. The learned counsel, however, submits that it is premature to say as to whether the allegations levelled against the applicant are correct and the applicant is liable to any disciplinary action since the disciplinary proceeding after appointment of the Inquiry Officer and Presenting Officer has not proceeded because of pendency of the OA.
26. In reply to the argument advanced by the applicant that the initiation of disciplinary proceeding by issuing the charge memorandum dated 18.02.2015 amounts to double jeopardy in view of the recovery order already passed, inasmuch as, according to the applicant, the penalty from the recovery of the pay, as prescribed in Rule 11 (iii) of the 1965 Rules, has already been imposed, it has been submitted by Mr. Singh that there is no order passed imposing penalty of recovery from his pay, whole or any part of pecuniary loss caused by him to the Government 26 OA No.940/2015 as prescribed under Rule 11 (iii) of the aforesaid Rules. The order dated 12.12.2014 has been issued in terms of the sanction order and as the applicant has failed to comply with the conditions stipulated therein, which, in any case, would not debar the Disciplinary Authority from issuing the charge memorandum.
27. Referring to the ground (d) of the challenge made to the charge memorandum, it has been submitted by the learned counsel that all the material facts were placed before the Disciplinary Authority, which being satisfied, has approved the initiation of the disciplinary proceeding by issuing the charge memorandum. The learned counsel submits that the stage has not come to record any finding as to whether the allegations in the charge memorandum are false. The learned counsel submits that those are definitely not manufactured and motivated.
28. The learned counsel referring to the allegation of non- application of mind by the Competent Authority in issuing the charge memorandum (ground-e of the challenge to the charge memorandum) has submitted that issuance of the charge memorandum pre-supposes proper application of mind by the Disciplinary Authority, unless the contrary is shown and demonstrated. According to the learned counsel, the applicant could not make out any case or demonstrate as to how and in what manner there is no application of mind on the part of the Disciplinary Authority in issuing the charge memorandum. It has 27 OA No.940/2015 also been submitted that a detailed speaking order by the Disciplinary Authority is not required to be passed before issuance of the charge memorandum, as it may amount to recording findings before the enquiry is conducted. The learned counsel reiterating his submissions earlier made, has also submitted that since there is a stipulation that the applicant would not be entitled to rebate in the interest in case of non-compliance of the conditions of the sanction order, it would not debar the Disciplinary Authority from initiating the disciplinary proceeding in case the Disciplinary Authorities prima facie of the view that a misconduct had been committed by the applicant.
29. The learned counsel also submits that on the face of the allegations levelled against the applicant, vide the charge memorandum dated 18.02.2015, it cannot be said that no misconduct is made out on the face of the record, even if the allegations levelled against the applicant are taken on face value. The learned counsel submits that there is no dispute on the principles of law laid down by the Hon'ble Apex Court as to what amounts to misconduct.
30. The learned counsel in reply to the submissions made by the applicant that the charge sheet is accentuated by malice (ground-
g), has reiterated the submissions made hereinabove. It has also been submitted that there is absolutely no malafide exercise of powers by the Disciplinary Authority in issuing the charge 28 OA No.940/2015 memorandum. It has been submitted that the applicant also could not place anything on record even to suggest that the action of the Disciplinary Authority was influenced by the action of the Subordinate Officer.
31. Relating to the allegation of total violation of principles of natural justice by the Ministry (ground-h), the learned counsel reiterating the submission already made submits that before issuance of charge memorandum the Disciplinary Authority gave ample opportunity to the applicant to comply with the requirements of the sanction order as well as GFR, and hence the applicant cannot take the plea that there was violation of principles of natural justice.
32. The learned counsel submits that while there is no dispute relating to the proposition of the laid down in the judicial pronouncements cited by the applicant in support of his contention, having regard to the facts and circumstances involved in the present case, the applicant is not entitled to any relief on the ground stated above.
33. The argument advanced by the applicant as well as by the learned counsel for the respondent has received our due consideration. We have also perused the pleadings of the parties apart from the documents annexed thereto.
29 OA No.940/2015
34. One of the grounds on which the applicant has challenged the charge memo dated 18.02.2015 is that before issuance of such charge memo, no show cause notice was issued giving him the opportunity of explaining his position before the disciplinary authority and hence the charge memo needs to be interfered with on the ground of violation principles of natural justice.
35. 1965 Rules lay down the procedure for imposing the penalty, either the minor or major. The said rule does not provide for issuance of any show cause notice to a delinquent officer before issuance of the charge memo. No hearing before issuance of the charge memo is also provided for. The principles of natural justice cannot be stretched to such a limit that even before issuance of charge memo the delinquent officer must be heard. The disciplinary authority, having regard to the facts and circumstances involved in the individual cases may prefer to conduct a preliminary enquiry to find out the fact, if there is any doubt relating to existence or otherwise of such fact, to satisfy itself as to whether any charge memo is required to be issued but it cannot be said that in all cases the disciplinary authority must conduct a preliminary enquiry before issuance of the charge memo. In the instant case it is, however, evident from the communications dated 17.04.2012, 28.05.2012, 20.09.2012, 19.10.2012 and 05.08.2013 that the applicant was informed by the Ministry of Statistics and Programme Implementation about 30 OA No.940/2015 non-furnishing the required information and to furnish the same. Though the applicant in the present proceeding has denied receipt of some of those communications, we do not intend to record any finding in the present proceeding, as it may cause prejudice to either of the parties. The judicial pronouncements referred to by the applicant in support of his contention relating to the violation of the principles of natural justice are not applicable in the case in hand. In neither of those cases, principle of law has been laid down to the effect that conduct of a preliminary enquiry and issuance of a notice before issuance of a charge memo to a delinquent officer is a must and violation of it would render the charge memo illegal. The decisions cited by the applicant, therefore, are not to be discussed in detail.
36. The second ground of challenge to the charge memo dated 18.02.2015, i.e., delay in issuance of the charge memo, cannot also be accepted for the following reasons. According to the respondents, the aforesaid communications dated 17.04.2012, 28.05.2012, 20.09.2012, 19.10.2012 and 05.08.2013 were issued to the applicant to furnish information and to comply with the conditions stipulated in the order sanctioning the loan, which according to the respondents, having not been complied with, would constitute misconduct, for which the charge memo dated 18.02.2015 has been issued. The applicant, however, has denied receipt of some of the aforesaid communications. As discussed 31 OA No.940/2015 above, the Tribunal is refraining itself from recording any finding relating to the receipt or otherwise of the aforesaid communications by the applicant, as it may amount to prejudging the issue before the fact finding exercise is carried out by the disciplinary authority. Having regard to the stand taken by the respondents relating to the aforesaid communications, it cannot be said that there was undue delay in issuance of the charge memo and that such delay is unexplained. The stand of the applicant that because of the delay it is not possible to remember what actually happened in the meantime and hence, if the proceeding is allowed to continue, it would cause prejudice to him, also cannot be accepted as the applicant would definitely have the necessary information to prove his case as projected in the written argument filed by him. At the same time, mere delay in initiation of the disciplinary proceeding cannot be the ground for setting aside a charge memo, unless of course such delay is inordinate, unexplained and caused prejudice to the person to whom charge memo is issued.
37. In Chaman Lal Goyal (supra), the Apex Court held that disciplinary proceeding must be conducted soon after irregularities are committed or soon after such irregularities are detected as delay may makes the task of proving the charges difficult and it gives room for allegations of bias, mala fides and misuse of power. It has also opined that if the delay is too long 32 OA No.940/2015 and unexplained, the court may interfere and quash the charges. But how long a delay is too long always depend upon the facts in the given case. In N. Radhakishan the issue was whether delay in concluding disciplinary proceeding would vitiate such proceeding. It has been held that if the delay is unexplained and it causes prejudice to the delinquent, the court may interfere with such proceeding. Normally, the disciplinary proceedings should be allowed to take its course as per relevant rules but if the delay is unexplained and caused prejudice, the proceeding has to be quashed. It has further been opined that court is to balance the prejudice and the explanation for delay, if any. Same view has also been taken in P.V. Mahadevan (supra), M.V. Bijlani (supra), V. Appala Swamy (supra) and Abdul Rasul Chowdhury (supra). The decision of the Apex Court in P.D. Agarwal, Baldev Singh and Bharat Petroleum Corporation do not relate to the question of delay.
38. The Central Vigilance Commission's (CVC) circular dated 23.05.2005 sets the timelines for completion of disciplinary proceedings and not for initiation of the disciplinary proceedings. In the instant case, the Inquiry Officer and Presenting Officer were appointed on 19.03.2015. It is true that proceeding thereafter has not proceeded, reason for which may be the pendency of the present OA before this Tribunal. The CVC circular being directory in nature, in any case the charge memo cannot be 33 OA No.940/2015 set aside, so also the proceedings on the ground that it has not been completed within a period of six months from the date of appointment of the Inquiry Officer and Presenting Officer. It is also evident from pleadings in the counter filed by the respondents that one of the reasons for delay in completion of the disciplinary proceedings initiated against the applicant is transfer of the Presenting Officer. As discussed above, mere delay in disposal of the disciplinary proceeding would not vitiate such proceeding, when such delay is not inordinate and unexplained.
39. Another ground of challenge to the charge memo dated 18.02.2015, as noticed above, is that the order of recovery dated 12.12.2014 having already been issued, which amounts to imposition of the minor penalty as provided in Rule 11 (iii) of 1965 Rues, no charge memo could have been issued as it amounts to double jeopardy. It is evident from Office Memorandum dated 12.12.2014 that for non-compliance of the stipulation in para 2(d) and 2 (e) of the Sanction Order dated 26.03.2012, the order for recovery was passed in terms of the conditions stipulated in the said Sanction Order as well as Rules 28 and 29 of the Compendium of Advances under GFR and the Government of India's decision thereunder. The said order of recovery has also been challenged by the applicant before this Tribunal, which proceeding is pending. The issuance of order of 34 OA No.940/2015 recovery would not amount to imposition of the minor penalties as stipulated under Rule 11 of 1965 Rules, more so when no proceeding as required under the said rules has been initiated. The respondent has resorted to the recovery in terms of the conditions of the Sanction Order and also Rules 28 and 29 of the aforesaid rules, validity of which has been questioned by the applicant in a separate OA. Recovery even if made, would not absolve the applicant if he has committed any misconduct in not complying with the conditions stipulated in the Sanction Order, more particularly in not executing the agreement in Form-II and the mortgage bond in Form-IV of GFR-2005, as alleged. If such act of the applicant is proved in a disciplinary proceeding initiated against him and if it amounts to misconduct, the applicant necessarily would be liable even if he repays the entire amount or the amount has been recovered from him. The submission of the applicant in that regard, therefore, cannot be accepted.
40. The contention of the applicant that the Ministry did not have its facts right and allegations in the charge sheet are false, motivated and manufactured besides being contrary to law, also cannot be accepted at this stage. Whether the charge memo has been rightly issued and whether the allegations in such charge memo are false, motivated and manufactured is a question of fact to be gone into by the Inquiry Officer during the disciplinary enquiry initiated against the applicant. No finding in that regard 35 OA No.940/2015 can be recorded by this Tribunal at this stage. The applicant necessarily would get ample opportunity to demonstrate that the allegations against him are false, motivated and manufactured. In a disciplinary proceeding, the initial burden lies on the department to prove the charges levelled against the delinquent officer and hence it is for the department to prove the allegations levelled against the applicant first. Hence, the said contention of the applicant also cannot be accepted.
41. Another contention of the applicant that there was total non- application of mind by the competent authority in issuing the charge memo also cannot be accepted as nothing could be placed before this Tribunal demonstrating to non-application of mind. On the other hand, it appears from the pleadings that the disciplinary authority having regard to all the relevant materials placed before it including the order of sanction of loan dated 26.03.2012, has decided to issue a charge memo, which accordingly has been issued. The order for recovery of loan dated 12.12.2014 also does not amount to pre-deciding the allegation levelled against him in the charge memo dated 18.02.2015, reasons for which have already been recorded above. The decisions on which the applicant has placed reliance in support of this contention do not relate to the disciplinary proceedings. That apart the principle as laid down in those cases are not applicable in the case in hand.
36 OA No.940/2015
42. The contention of the applicant that the charge sheet is actuated by malice also does not deserve to be accepted for the reason that the allegation of mala fide has been levelled against an officer and not against the disciplinary authority. There is absolutely no allegation of mala fide against the disciplinary authority in issuing the charge memo. The disciplinary authority has issued the charge memo on being satisfied that the applicant should be issued a charge memo for the allegations mentioned therein. Nothing also could be placed before this Tribunal to demonstrate that the disciplinary authority was misled by anyone, which resulted in issuance of the charge memo dated 18.02.2015. When the disciplinary authority has approved the proposal for initiation of departmental proceeding against the applicant on the basis of the relevant materials before him, it has to be presumed that the disciplinary authority has applied his mind to all relevant facts and materials placed before him before according approval of the charge memo, unless, of course, such presumption is dispelled by the person challenging it by placing relevant materials in that regard, which the applicant having failed to do, this ground of challenge to the charge memo also cannot be sustained. The decisions of this Tribunal, on which the applicant has placed reliance, are based on the facts and circumstances of those cases. Whether there is any malice or institutional bias has to be decided on the facts of each case. As 37 OA No.940/2015 discussed above, the applicant could not demonstrate any malice or institutional bias in this case.
43. Another ground of challenge to the charge memo is that there was total violation of the principles of natural justice by the respondent-Ministry while dealing with the case of the applicant. The Tribunal has also recorded a finding that there being no requirement for issuance of a notice before issuance of a charge memo, there is no violation of principles of natural justice in issuing the charge memo. The contention of the applicant that the principles of natural justice have been violated as he was not given any personal hearing by the disciplinary authority despite the stipulation in paragraph 2 of the impugned charge memo dated 18.02.2015, cannot also be accepted as the opportunity of personal hearing as mentioned in the charge memo relates to the disciplinary proceeding to be conducted based on the said charge memo dated 18.02.2015, stage for which is yet to come. It does not mean personal hearing either before issuance of the charge memo or before appointing the Inquiry Officer or Presenting Officer. The disciplinary authority, having regard to the charge memo issued and also reply filed thereto, has to take a decision as to whether it would proceed with the enquiry or drop the same. If the disciplinary authority is of the opinion that the written statement filed by the delinquent officer in response to the charge memo is not satisfactory and the allegations levelled 38 OA No.940/2015 against him need to be enquired into, it should appoint an Inquiry Officer to conduct the enquiry and also the Presenting Officer to present the case of the department. No personal hearing before forming such opinion for continuance of the disciplinary proceeding is necessary. No detailed order is also required to be passed by the disciplinary authority in that regard. The delinquent officer necessarily would get the opportunity to prove his case in the disciplinary proceeding initiated against him. Hence, this ground of challenge to the charge memo dated 18.02.2015 also cannot be sustained in law.
44. The applicant though in the written argument filed on 09.12.2015 has taken two other grounds, being ground (i) and
(j), those were never raised during the course of arguments and hence cannot be taken into consideration as it would amount to depriving the respondent from presenting their case in that regard. In any case, if there is any violation of the circular issued by the CVC as pleaded by the applicant in ground (i) of the written statement, it is open to the applicant to point out the same to the Inquiry Officer during the course of enquiry and hence no prejudice would be caused to him. The ground (j) taken in the written statement is very tentative as according to the applicant himself, the charge sheet may not have the formal approval of the competent authority. There is no specific assertion of the applicant that the charge sheet was not formally 39 OA No.940/2015 approved by the competent authority before issuance of the same to the applicant.
45. The grounds (k) and (l) taken by the applicant in the argument statement are nothing but repetition of the submissions advanced in support of the grounds (e) and (f) as discussed above and hence those grounds are not dealt with separately.
46. In the miscellaneous grounds taken in the written argument filed, the applicant has taken an interesting stand contending that there is no proof on record that the car loan was ever released to him. Though from the pleadings in the OA applicant himself admitted release of such car loan pursuant to the Sanction Order dated 26.03.2012. The submission of the applicant that release of car loan sanctioned vide order dated 26.03.2012 presupposes the execution of the agreement in Form-II of GFR-2005, as execution of such agreement is a condition precedent of sanction of loan, is again a question of fact which needs to be gone into in the enquiry to be conducted by the Inquiry Officer pursuant to the charge memo dated 18.02.2015. There may be situation where even without execution of such an agreement loan amount is released on the understanding that the same would be executed. Whether such agreement was executed or not and whether non- execution of such agreement amounts to misconduct, is to be decided in the enquiry to be conducted by the Inquiry Officer and 40 OA No.940/2015 any finding recorded in that behalf would amount to prejudging the issue, which the Tribunal would refrain from doing.
47. We shall now proceed to consider the ground of challenge of the charge memo that no misconduct being made out on the face of the allegations levelled against the applicant in the aforesaid charge memo, the same needs to be quashed. The Tribunal should not ordinarily quash a charge memo issued in a disciplinary proceeding. The Tribunal, however, has the jurisdiction to entertain an application challenging the charge memo and also to quash the same, in a given case, depending upon the facts of the case. The Apex Court in Union of India Vs. Kunisetty Satyanarayana's case, reported in AIR 2007 SC 906, has opined that a mere charge sheet or show cause notice does not give rise to any cause of action because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. The Apex Court has further opined that though ordinarily a charge memo should not be quashed, but in some very rare and exceptional cases the Court can quash a charge memo if it is found to be wholly without jurisdiction, or for some other reason if it is found wholly illegal.
48. The word 'misconduct' has not been defined either in the Conduct Rules or in the 1965 Rules. The Apex Court in J. Ahmed's case while dealing with the definition of 'misconduct', 41 OA No.940/2015 has observed that there may be negligence in performance of duty or a lapse in performance of duty, or error of judgment in evaluating the developing situation may be negligence in discharge of duty, but would not constitute 'misconduct' unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. It has also been opined that an error can be indicative of negligence, and the degree of culpability may indicate the grossness of the negligence and carelessness can often be productive of more harm than deliberate wickedness or malevolence. The Apex Court further observed that failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. The Apex Court has also opined that the lack of efficiency or failure to attain highest standard or discharge of duties attached to a public office would not, ipso facto, constitute a misconduct.
49. In Baldev Singh Gandhi (supra), the Apex Court has opined that the word 'misconduct' is antithesis of the word 'conduct'. Thus, ordinarily the expression 'misconduct' means wrong or improper conduct, unlawful behaviour, misfeasance, wrong conduct, misdemeanour etc. There being different meaning 42 OA No.940/2015 of the expression 'misconduct', the expression 'misconduct' has to be construed with reference to the subject and the context wherein the said expression occurs, regard being had to the aims and objects of the statute.
50. In M.M. Malhotra (supra), the Apex Court has observed that the word 'misconduct' is not capable of precise definition. The word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. It has also been observed that the act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve. The principle of law laid down being the same, the other decisions cited by the applicant have not been discussed.
51. Misconduct has been defined in Black's Law Dictionary, Sixth Edition as "A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement offense, but not negligence or carelessness." It has further been defined as "Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder 43 OA No.940/2015 had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
52. The expression 'misconduct', therefore, has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour and wilful in character.
53. A Division Bench of this Tribunal in OA No.2846/2015 - Ms. Sudha Midha Vs. U.O.I. & Another decided on 10.09.2015 (of which one of the present Members was also a Member) having discussed what constitute misconduct, has set aside the charge memo issued to the applicant therein having regard to the facts involved in the said case. As discussed above, the charge memo issued should not normally be interfered with, unless, of course, the charge memo has been issued by an authority who is not competent to do so or the allegation levelled against the delinquent officer in the charge memo on its face value does not constitute any misconduct or the charge memo has been issued with a mala fide intention of depriving the officer from getting promotion.
54. In the instant case, the articles of charges levelled against the applicant vide the impugned charge memorandum dated 18.02.2015 have already been quoted above. There are, altogether 4 (four) charges levelled against the applicant. The Ist Article of Charge is based on the allegation that Shri Mohanty has failed to comply with the terms and conditions of the Sanction 44 OA No.940/2015 Order dated 26.03.2012 deliberately, in spite of the directions issued to him as well as the subsequent reminders. The question whether Shri Mohanty has complied with the terms and conditions of the said Sanction Order is a question of fact to be ascertained in the disciplinary proceeding initiated against the applicant, based on which the Inquiry Officer has to record the finding relating to the conduct of the applicant within the meaning of Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964. Recording any finding as to whether there was compliance of the terms and conditions of the Sanction Order by this Tribunal at this stage would amount to pre-judging the issue, which cannot be done by the Tribunal and has to be gone into by the IO in the enquiry initiated against the applicant. The allegation in IInd Article of Charge is nothing but repetition of the allegations in the Ist Article of Charge.
55. The allegation on which the IIIrd Article of Charge is based is that the applicant did not fully utilize the amount withdrawn from the GPF and the Motor Car Advance and at the same time did not return the unutilize amount to the Government, as required under the rules and in terms of the loan Sanction Order dated 26.03.2012, and thereby conducted himself in a manner unbecoming of a Government servant and thus violated Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964. On reading of the allegations constituting the article of charge No.III, it is apparent that such allegations have been made on the basis of 45 OA No.940/2015 presumption and surmises. It is not in dispute that the price of the car purchased by the applicant was Rs.10,06,112. An amount of Rs.1,50,000/-, as advance for purchasing the car, was sanctioned to the applicant vide order dated 26.03.2012, which amount obviously is not sufficient to defray the cost of the car. It also appears from the various communications issued by the applicant that he has duly intimated the concerned authority about taking of loan of Rs.8,34,000/- from ICICI Bank. The applicant has also withdrawn a sum of Rs.1,10,000/- from his GPF account, which is his deposit and he has a right to withdraw the same. The Disciplinary Authority simply by adding the car advance amount, GPF withdrawal and Rs.50,000/- paid in advance for purchase of car, has calculated that though an amount of Rs.6,96,112/- was required to be taken from the ICICI Bank, the applicant has availed loan of Rs.8,34,000/- from the said Bank. Since adding Rs.8,34,000/-, i.e., the loan taken by the applicant from ICICI Bank to Rs.1,50,000/- being the motor car advance and Rs.1,10,000/- withdrawn from GFP and Rs.50,000/- paid in advance, the total amount comes to more than Rs.10,06,112/-, i.e., the cost of the car, the department has presumed that Shri Mohanty has made a false statement to the Ministry about the quantum of the loan taken from the ICICI Bank and by drawing excess of loan amount from ICICI Bank Limited, did not fully utilize the amount withdrawn from GPF and the amount of motor car advance and the same time does not 46 OA No.940/2015 return the unutilized amount to the Government, as required under the rules, ignoring the fact that the accessories are required to be fitted in the car and also the fact that the GPF amount being the amount deposited by the applicant out of his salary, it is for the applicant how to spend the said amount. The allegation levelled against the applicant in Article of Charge No.III is based on surmises and conjectures, which in any case does not constitute any misconduct even if the allegations are taken at its face value and hence the Disciplinary Authority ought not to have frame article of charge No.III against the applicant, which is, therefore, quashed and set aside.
56. The IVth Article of Charge relates to non-compliance of the terms and conditions of the Sanction Order dated 26.03.2012, apart from giving an undertaking about the Car under the first and exclusive charge of ICICI Bank Limited and by executing an 'Irrevocable Power of Attorney' in favour of ICICI Bank Limited while obtaining a loan of Rs.8,34,000/- from that Bank, knowing fully well that by executing such documents, he would not be able to furnish a Mortgage Bond in Form-IV of GFR-2005 on completion of purchase of the Car hypothecating the Conveyance to the President of India for security of the loan advance. The question whether any Irrevocable Power of Attorney has been executed by the applicant in favour of the aforesaid Bank and whether a Mortgage Bond in Form-IV of GFR_2005 has been executed, if not, what would be its effect and whether it will 47 OA No.940/2015 amount to misconduct are the questions to be gone into by the Inquiry Officer in the disciplinary enquiry initiated against the applicant and cannot be gone into by the Tribunal at this stage. Any finding, if recorded in that regard would amount to pre- judging the issue.
57. In view of what has been discussed above, we are of the view that the Article of Charge-III needs to be quashed the same being not sustainable in law, which we accordingly do so. We also direct the Disciplinary Authority to complete the disciplinary proceeding on the remaining charges, including the final order to be passed by the Disciplinary Authority, within a period of 3 (three) months from today, having regard to the fact that the applicant is due to be considered for promotion to the post of Additional Director General. Needless to say that the applicant shall appear before the Inquiry Officer whenever directed and he shall be given all reasonable opportunity to defend himself in the said enquiry. The Disciplinary Authority shall comply with the requirements of 1965 Rules in conducting the disciplinary proceeding against the applicant.
58. The OA is partly allowed. No costs.
(V.N. GAUR) (B.P. KATAKEY) MEMBER (A) MEMBER (J) Rakesh